1981 PLP (C (PLC(CS))

SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN),‑This service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act, 1975 is directed against the Government Order dated 7‑2‑1980 whereby the appellant was dismissed from service on charge of misconduct. The facts leading to this appeal, briefly stated, are that one Mir Mohammad Bashir, an Ex‑Member of Azad Jammu & Kashmir Council sold a shop built on the land measuring 1 Marla, 7 feet and 9 inches bearing Khasra No. 1498/1237 situate in Muzaffarabad Town to one Mohammad Farid Khan through a registered sale‑deed dated 1‑8‑1978. The concerned Patwari made an entry of the acquisition of the right of ownership on the basis of the said sale‑deed in the register of mutations but the Field Qanungo while verifying the same also pointed out in his verification report that the said Mir Mohammad Bashir is ex‑State Councillor and that the sale of property by a State Councillor and a Member of Legislative Assembly is banned by the Chairman Inspection Team. The appellant in his capacity as Naib‑Tehsildar, Muzaffarabad attested the proposed mutation in favour of the said property notwithstanding the aforesaid note of the Girdawar. The Government after some time took notice of the attestation of the said mutation by the appellant and decided to take disciplinary action against him who was by then promoted and posted as Tehsildar Koth for having unlawfully attested the mutation. He was accordingly served with a show‑pause notice issued under the signature of Deputy Secretary Services and General Administration (Regulation) on 3‑11‑1979 containing the charge that: - He in his capacity as Naib‑Tehsildar, Muzaffarabad made an order of the attestation of mutation on the basis of the sale‑deed executed by Mir Mohammad Bashir Ex‑Member J & K Council in favour of Mohammad Farid Khan in violation of section 4 of the Ordinance X11 of 1979 despite the fact that the Girdawar had pointed out in his note that such a sale of property by a State Councillor was prohibited and that he as a Revenue Officer knew fully well that this sale of property was unlawful. The appellant was also directed to submit his reply to the above charge within a weak to Mr. Maqsood Ahmad Khan, Additional Commissioner who was appointed as an Enquiry Officer. The appellant furnished his expla nation to the show‑cause notice denying therein the allegations made against him taking the stand that mutation in question was attested by him in accordance with the law in the performance of his official duties. The Enquiry Officer recorded the statements of certain witnesses appearing against the appellant and submitted his report to the respondent who after taking into consideration the enquiry report and hearing the appellants in person found the appellant guilty of gross misconduct in sanctioning the mutation in question and accordingly passed the impugned order of his dismissal from service. Feeling aggrieved of the aforesaid order the appellant filed a review petition against it to the respondent but as no reply was received by him even after the expiry of the waiting period of 90 days 'he has approached this Tribunal for the redress of his grievanaces arising out the impugned order by way of the present appeal. The appeal has been contested on behalf of the respondent by filing the written objections in which it is contended that the appellant has been rightly and lawfully dismissed from service on the charge of having committed misconduct in the performance of his official duties after taking necessary disciplinary proceedings against him according to law. We have heard the learned counsel for the parties and have also examined the relevant file pertaining to the disciplinary proceedings against the appellant. After taking into consideration the facts of the case and the nature of the disciplinary proceedings conducted against the appellant we feel no hesitation in holding at the very outset that the entire disciplinary proceedings right from the beginning to the end including the passing of the impugned order were without jurisdiction, unlawful and ab initio void. We have come to this conclusion after going through the relevant provisions of law which govern the disciplinary actions against the civil servants. The Azad Jammu & Kashmir Civil Servant Efficiency and Discipline) Rules, 1977 (hereinafter referred to as (Efficiency and Discipline Rules) are applicable in such cases whose Chapter III deals with the inquiry against and imposition of penalties on the civil servant. It would be profitable to preproduce the relevant rules for the sake of facility of reference Rule

5. Initiation of proceedings.‑If, in the opinion of the authority there are sufficient grounds for proceeding against a civil servant, it shall direct the authorised Officer to proceed against the said civil servant. Rule

6. Inquiry procedure to be observed by the authorised Officer.‑The following procedure shall be observed by the authorised officer when a civil servant is proceeded against under these rules‑ (i) in case where a civil servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave, if due, or with the approval of the authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months ; (2) The authorised Officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, he shall appoint an Inquiry Officer or Inquiry Committee consisting of two or more persons who or one of whom shall be of the rank senior to the accused or all of the co‑accused and the procedure indicated in rules 7 and 8 shall apply. (3) If the authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, be shall‑ (a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and (b) give him a reasonable opportunity of showing cause against that action: Provided that no such opportunity shall be given where the authority Is satisfied that in the interest of the security of Pakistan or Azad Jammu & Kashmir or any part thereof it is not expedient to give such opportunity. (4) on receipt of the explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall forward the case to the authority alongwith the explanation of the accused, and his own recommendations regarding the penalty to be imposed. The authority shall pass such order as it may deem proper: Rule

7. Procedure to be observed by the Inquiry Officer and Inquiry Committee.‑Where an Inquiry Officer or Inquiry Committee is appointed the authorised Officer shall‑ . (1) frame a charge and communicates it to the accused together with statement of allegation explaining the charge and of any other relevant circumstance which are proposed to be taken into consideration; (2) require the accused, within a reasonable time, which shall not be less than seven days or more than fourteen days, from the day the charge has been communicated to him, to put in a written defence and to state, at the same time whether he desires to be heard in person; (3) the Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or' in defence of the accused, as may be considered necessary, and the accused shall be entitled to cross- examine the witness against him; (4) . (5) . (6) . (7) the Inquiry Officer or the Committee, as the case may be, shall "within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorised officer submit his or its findings and the grounds thereof to the authorised Officer. (8) On the receipt of the report of Inquiry Officer or Inquiry Committee, the authorised Officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty, he shall pass order accordingly. If it proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge‑sheet, a statement of allegations served on the accused, explanation of the accused, the findings of the Inquiry Officer or the Inquiry Committee and his own recommendations regarding penalty to be imposed. Rule

8. Action by the Authority.‑In the case of any proceedings the record of which has been reported for order under sub‑rule (4) of rule 6 or sub‑rule (8) of rule 7 the authority shall, after affording the accused and opportunity of being heard in person, pass such orders as it may deem fit. As is evident from the above‑quoted rules of the efficiency and discipline rules the authority after decision to proceed against the civil servant and giving direction to that effect to the authorised officer goes out of the picture except that it appears again on the scene when on the proposal of the authorised Officer major penalty is to be imposed on the civil servant and it is the authorised Officer who then occupies the pivotal position in the conduct of the entire remaining disciplinary proceedings. After receiving direction from the authority for taking disciplinary action against a civil servant it is the authorised officer with whom lies the power to make decision as to whether or not the enquiry against a civil servant should be conducted through the enquiry officer or enquiry committee and in case his decision is in favour to be conducted through the enquiry officer or enquiry committee it is he who enjoys the power to appoint such an officer or committee. Again it is he who then frames the charge against the civil servant, communicates the same to him, asks him to put his written defence to it and to intimate whether he would avail of the opportunity of personal hearing. It is also the authorised Officer who possesses the authority to determine on the basis of the enquiry report submitted to him by the enquiry officer or enquiry committee as to whether the charge against the accused civil servant has been established and to decide the nature of penalty to be inflicted on him. The power to award minor penalty also vests in him and it is only when the major penalty is proposed to be imposed on the accused civil servant that he is required to transmit the whole record of the disciplinary proceedings alongwith his own recommendations in respect of the penalty to be imposed to the authority. From the scheme of the disciplinary rules as detailed above it appears that two persons namely authority and authorised officer have been clothed with the powers to take disciplinary action against the civil servant and out of them authorised officer figures prominently inasmuch as most of the powers during the disciplinary proceedings are concentrated in him and the ambit of the powers of the authority is confined to initiation of disciplinary proceedings against the civil servant and then again to imposing the major penalty on him provided in the opinion of the authorised officer such a penalty is called for in the circumstances of the case and is recommended by him. Now let us proceed to determine the authority and authorised Officer in the case of the appellant. The authority and authorised officer are defined by sub‑rules (b),and (c) of rule 2 of Efficiency and Discipline Rules respectively which read as under: ‑ (b) "authority" means the Government or an Officer or authority designated by it to exercise the power of the authority under these rules ; (c) "authorised Officer" means an officer authorised to perform functions of an authorised officer under these rules Provided that in relation to certain civil servants "the authority" may be authorised to act as authorised officer ; The Government in exercise of the powers vested in it under the, rules reproduced above has designated authority and authorised Officers of the various Departments vide its Notification No. S&GAD/R‑80/SO‑I‑121064 924/79 dated 17‑10‑79, the relevant portion of which reads as follows: ‑ Revenue Departments Authority Authorised.

1. Grade 17 to 19 Prime Minister Secretary Revenue. Chief Executive

2. Grade 9 to 16 Secretary Revenue Commissioner.

3. Grade 4 to 8 Commissioner Dy. Commissioner.

4. Grade 1 to 3 Dy. Commissioner SDM: Rev. Asstt. Asstt. Commissioner. It is clear from the rules and Notification quoted above that the appellant being an Officer of grade 16 in the Revenue Department the authority and authorised Officer in his case were Revenue Secretary and Commissioner respectively but none of them was associated with the disciplinary proceedings taken against the appellant at any stage which were exclusively initiated and finalised by the Government‑respondent without any reference to them. It was the Government who took the decision to initiate disciplinary proceedings against the appellant, issued show‑cause notice containing charge against him, appointed Inquiry Officer to enquire into the charge and finally awarded penalty on him of his dismissal from service. Thus, there remains no doubt that the entire disciplinary proceedings against the appellant, right from the beginning to the end including the passing of the im pugned order of dismissal from service, were carried out by the incompetent authority in flagrant disregard of the statutory rules appli cable to such proceedings against the civil servant. The Government in violation of the disciplinary rules assumed for itself the powers of the authority and authorised Officer in the present case thereby trans gressing the limits of its power and authority. It hardly needs mention here that when an authority has been authorised to take some proceedings under the law, it is the aforesaid authority alone who can exercise the power in question and similarly it is well‑settled principle of law that when any thing is prescribed to be done in a particular way it should be done accordingly or not at all and that an order passed by an authority other than the competent one, even though of a higher rank is nullity in the eyes of law. These principle are applicable even with a greater force in case of a penal order like the one impugned in this appeal. The rationale and objective behind making the provisions for authority, authorised Officer and inquiry Officer or , inquiry committee and of assigning to each of them distinct functions m the Efficiency and Discipline Rules appears to be to ensure the scrutiny of the charge against the civil servant at different levels by different persons independently of each other. This objective obviously stood defeated in the case in hand when the Government did not allow the autho rity and authorised Officer to exercise their respective powers and functions and took upon itself to discharge the same because by this unwar ranted action of the respondent the appellant was deprived altogether of the valuable right of being adjudged by authority and authorised Officer. Not only that but the assumption of the powers of authority and authorised officer by the respondent has also adversely affected the appellant in yet another respect in that it has resulted in the loss of his right of departmental appeal available to him under rule 13 of the efficiency and discipline rules because the Government was an appellate authority from the order of the Revenue Secretary who being designated as authority was alone competent to pass the impugned order against the appellant. Even if by any stretch of interpretation of the definition of the word "authority" as given in Efficiency and Discipline Rules it is assumed for the sake of argument that the Government was also an authority in the case of the appellant, still the disciplinary action under discussion cannot be saved from being held as illegal and without jurisdiction for the simple reason that even the powers of the authorised officer have been exercised by the Government in the instant case in clear breach of the Efficiency and Discipline Rules. The impugned order is also not sustainable on the ground that it has proceeded on the enquiry report which was itself unlawful. Apart from the fact that enquiry officer was not appointed by a competent authority, that is, by the Commissioner who was authorised officer in the case of the appellant the enquiry Officer also did not conduct the enquiry in accordance with the procedure prescribed for such inquiry. The enquiry officer in terms of sub‑rule (3) of rule 7 of Efficiency and Discipline Rules was bound to examine evidence in support of the charge in the presence of the appellant who was entitled to cross‑examine the witnesses appearing against him during the enquiry and to produce evidence in his defence. But from the record of the inquiry proceedings it is quite evident that the entire enquiry was held at the back of the appellant who was not afforded an opportunity either to cross- examine the witnesses examined in support of the charge against him or to produce evidence in his defence. Thus, the enquiry report based on the inquiry proceedings taken in contravention of the relevant rules stands vitiated and consequently the impunged order passed on the basis of such report being devoid of any legal sanctity is unmaintainable. In the light of what has been said above we are left with no alternative but to hold that the entire disciplinary proceedings including the impugned order are invalid and void ab initio. Even on merits the impugned order cannot be upheld. The learned counsel for the appellant has argued that the special Judge comprised Judge of the Supreme Court has acquitted Mir Mohammad Bashir Ex‑Member Azad Jammu & Kashmir Council of the charge of selling his shop in contravention of the provisions of Azad Jammu & Kashmir Transfer of Properties (Prohibition) Ordinance, 1977. He has produced a copy of the judgment of the said Court from the perusal of which the contention of the learned counsel for the appellant appears to be correct. The main grounds of acquittal of the said accused are contained in paras. 6 and 12 of the judgment which may be reproduced here with advantage: ‑ "Para 6.‑Before adverting to examine the evidence for and against the controversy it is to be examined, as contended by the learned counsel, as to whether the accused, even if the prosecution case is admitted to be correct, in totality, can be prosecuted and convicted under the provisions of prohibition Ordinance. The main section of the prohibition Ordinance which prohibits the transfer of property is section 3 which reads: ‑ "Prohibition of transfer of property generally.‑The Government may, by notification in the official Gazette, declare that for such period as may be specified in the notification, the transfer of any property or class of property or the creation of any right or interest therein or encumb rance thereon, by or on. behalf of any person, specified in the notifica tion, shall be prohibited and where any such declaration has been made, no such transfer or creation shall be made during that period." "The plain reading of this section unmistakably conveys the sense that the prohibition to transfer the property must be 'notified in the official Gazette and such notification is to show and declare the period for which the prohibition to transfer such property is visualized by the Legislature. Such declaration is a condition precedent for launching a prosecution against a person and, if it is wanting, it cannot be said that section 3 of the Ordinance has been violated. In the absence of such notification no law prohibiting the transfer of one's own property comes into life." "Para 12.‑With the state of law I feel no difficulty to say that the law to forbid transfer of property under section 3 of the Prohibition Act enjoins issuance of a notification prior to the prosecution, which is missing in this case." In view of the above I hold that the prosecution of the accused is not tedable because no notification, as required under section 3 of the Prohibition Act, has been proved to have been issued and promulgated in the official Gazette to make the accused liable for transferring the shop in question. As the accused earns acquittal on a legal ground, the merits of the case, in view of the evidence need not be discussed and determined. "For the view I have taken in the matter I acquit the accused." We are in respectful agreement with the above observations of the Special Court made in its judgment. The contents of section ‑3 of the said Ordinance reproduced in para 6 of the judgment of Special Court make it quite clear that this provision of law does not straightaway impose prohibition on the sale or property by an Ex‑Member of the Legislative Assembly or of A. J. K. Council but it only confers on the Government the power to prohibit the transfer of interest in such property by such person and for inch period as may be specified by it in the Notification to be published in the official Gazette and it is only after the publication of such a Notification that a person speci fied therein is debarred from transferring an interest in a property for such a period as is specified in the Notification. In other words there is no ban on the sale of property on any person by virtue of the aforesaid section of the Ordi nance unless the Notification contemplated therein is made by the Government and published in the official Gazette. There is no denying the fact that no such Notification was published in official Gazette at the relevant time. Thus, the charge against the appellant contained in the show‑cause cannot be sustained on the ground that the very basis on which it is founded is not found to be correct. When the sale deed of the shop executed by Mir Bashir was not void or invalid how the allegation against the appellant of unlawfully attesting a mutation on its basis can successfully be made and proved. The sale in question not being hit by the provisions of section 3 of the said Ordinance, no irregularity can be said to have been committed by the appellant in sanctioning the mutation on the strength of such a transaction. This is all about the interpretation and application of section 3 of the said Ordinance but there is yet another important aspect of the case which needs close scrutiny and examination. The charge against the appellant as contained in the show-cause notice served upon him is to the following effect: As it appears from the charge reproduced above the appellant was charged for having attested a mutation on the basis of the sale‑deed executed in violation of section 4 of the Ordinance XII of 1979. In this context it may not be out of place to mention at the very beginning that Ordinance XII of 1979 was not at all applicable to the facts of the case as the same had not come into being at the time of the attestation of mutation by the appellant which is the subject of the charge against him. The order of the appellant regarding the sanctioning of mutation in question was made in the month of November 1978 on the basis of Sale‑Deed registered earlier. Any how, this patent defect appearing in the show‑cause notice issued to the appellant is not of much substance because we find that an Ordinance similar in substance to that of aforesaid Ordinance was originally promulgated on the 11th December 1977 by the President which was called "The Azad Jammu & Kashmir Transfer of Properties (Prohibition) Ordinance and after the expiry of such period of four months the same was repealed and freshly promulgated. Thus, there was an Ordinance in existence at the time of the sanctioning of mutation exactly the same as was that of Ordinance of 1977 in question by the appellant in the year 1978 whose section 4 was referred to above. The section 4 of the Azad J & K Transfer of Properties(Prohibition) Ordinance, 1977 reads as follows: ‑ "Section

4. Prohibition of transfer of property by specified person. No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever after the commence ment of this Ordinance by or on behalf of a specified person shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, till such date as may be notified by the Government in the official Gazette." From the reading of the above‑quoted section it appears that this section does not impose any prohibition on the transfer of any property by a specified person but only declares the sale of property made by a specified person after the commencement of the said Ordinance to be ineffective till such date as may be notified by the Government in the official Gazette. In other words this provision of the Ordinance would be operative and enforce able only in case some date up to which it is to remain operative is notified by the Government in the Official Gazette and unless such a notification with regard to the date is made the provision of this section will remain dormant and ineffectual with the result that the sale by specified person of his property will be as effective as it would have been had the aforesaid provision of law not been enacted. We have not been shown that any such notification as required under section 4 of the relevant Ordinance of 1978' was published in the official Gazette at the relevant time and rather it is conceded by the learned counsel for the respondent that no such notification was made by the Government and published in official Gazette. This being the factual position, the charge against the appellant of attesting the mutation on the basis of sale‑deed executed in contravention of section 4 of the said Ordinance has no roots to stay out and consequently the charge against the appellant that he was guilty of misconduct‑in‑ attesting the mutation on the basis of unlawful transaction stands disproved. Even assuming but not conceding that the transfer of property in question was unlawful for having been made against the provision of the said Ordinance, still the appellant cannot be held to have committed any miscon duct or irregularity in attesting the mutation by acting on such a transaction. In the charge‑sheet the allegation of misconduct against the appellant in attesting the mutation is based on the two‑fold ground, namely (i) that the appellant attested the mutation in question in disregard of the note of the field‑Qanungoe pointing out clearly the prohibition on the transfer of property by an ex‑Member of A. J. K. Council (it) that he deliberately sanctioned the mutation in contravention of the law inasmuch as a Revenue Officer had the knowledge of such a sale being unlawful. We have examined the said note of the Field Qanungoe, which, in our view, does not at all state that the sale by the Ex‑Member of Jammu & Kashmir Council of his property is prohibited by any law. The Field‑Qanungoe while verifying the entries made by the Patwari made a note that the Chairman, Inspection Team had imposed a ban on the sale of property by the State Councillors and M L As. and that Mir Mohammad Bashir had been a State Councillor. This note of the Field Qanungoe carried no weight and was of no legal value as Chairman Inspection Team was not empowered under any law to impose any ban on transfer of any property by any person and thus the appellant by ignoring this meaningless note has committed no irregularity, what to speak of gross misconduct. The appellant being competent authority to attest mutation was within his legal rights not to take into consideration such a note of his subordinate and to attest the mutation of the transaction. Similarly there is nothing on the record to substantiate the allegation contained in the charge against the appellant that he had the knowledge of the promulgation of an Ordinance declaring the transfer of property by specified persons to be illegal or unlawful. Even the enquiry Officer had not come to definite conclusion that the appellant had the knowledge of the enforcement or any such law prohibiting the sale of property by ex‑Member of A J & K Council. All that he has remarked in this regard in his enquiry report is that the appellant either did not know about the imposition of ban on such transfer or he intentionally attested the mutation in question with special interest or ulterior motive. Thus the knowledge of the appellant regarding the promulgation of the relevant Ordinance is in no way established by any evidence on the record. Now, it is to b: seen whether such a knowledge can be presumed under any provision of law ? Neither the learned counsel for the respondent has referred to nor we ourselves have been able to lay over hands on any such presumption of law and in the absence of any such proof or presumption of law it cannot be said that the appellant was in any way guilty of misconduct in attesting the mutation. On the other hand the law as contained in the Land Revenue Act cast upon the appellant the legal duty to attest the mutation of a transaction made through the registered Sale‑Deed and entered by the Patwari concerned in the mutation register and verified by the Field‑Qanungoe. It appears pertinent to mention here that it bas been repeatedly held by the superior Courts, both Civil, as well as Revenue, that the mutation proceedings are summary in character and a mutation neither creates a title nor it adversely affects the rights of any person as it does not determine the rights of the parties. The Superior Courts have gone further to the extent of holding that when a Deed is registered, the right course‑for the Revenue Officer is to act upon such a Deed in the ordinary way and by refusing to act upon it the Revenue Officer shall be assuming the role of a civil Court which is beyond his jurisdiction and that the mutation should not be refused merely because that the alienor has no right by custom or law to make such alienation. Thus, in the circumstances of the case if the appellant attested the mutation on the basis of Sale‑Deed (executed) by an ex‑Member of the A J & K Council he simply discharged the legal responsibility enjoined upon him by the law of the land to make the Revenue record up‑to‑date according to the latest factual position and is would be too much to attribute any misconduct to have been committed by him in so doing in the performance of his official duties. There fore in the light of the above discussion there remains no manner of doubt that the disciplinary proceedings against the appellant which ultimately resulted in his dismissal from service were taken under clear misconception of law as well as facts. The outcome of the above discussion on the legal aspects as well as on merits of the case is that the disciplinary action against the appellant was initiated and concluded by an authority other than the competent one under (Efficiency and Discipline) Rules, which fact by itself vitiated the impugned order of dismissal as having been made without lawful authority and even otherwise on the facts of case the charge of misconduct had not been brought home to the appellant. For the foregoing reasons the order of the dismissal of the appellant dated 7‑2‑1980 made by the respondent is declared to be void and of no legal effect and consequently the same is set aside leaving the parties to bear their own costs. The appellant shall be deemed to be still in service and entitled to his pay, allowances and other fringe benefits which he would have received but for his dismissal from service the date of the passing of the impugned order till to date. The parties shall be informed of this order. KHAWAJA GHULAM QADIR (MEMBER).‑I agree. Appeal dismissed.